Memeorandum

September 20, 2006

Dear Office Of Professional Responsibility

Clarice Feldman follows up her Weekly Standard article about the Plame case by sending a letter to the Department of Justice's Office of Professional Responsibility questioning the conduct of Special Counsel Patrick Fitzgerald.

Ms. Feldman raises an interesting question with a fun backstory - was Ms. Plame actually covered by the Intelligence Identities Protection Act, and did Mr. Fitzgerald misrepresent her status under the IIPA to the court in his affidavit of Aug 27 2004?

First, Ms. Feldman:

At no time in the
unredacted portions of the affidavit did Fitzgerald directly say that
Plame met the test of the IIPA - which she clearly does not -but in
various ways he deliberately left the Court with that impression in
order to effect the rare contempt order and jailing of a reporter.

And for the backstory, let's cut to Jack Shafer, who pounded on the NY Times and their lead attorney. Floyd Abrams, for basing their argument on the First Amendment while attempting to have the subpoena against Time reporter Judy Miller quashed:

Maybe a First Amendment legend isn't what this case called for in the
first place. Maybe Cooper and Miller would have been better served by
having a criminal lawyer who knows how to bargain.

With New York Times Publisher Arthur Sulzberger Jr. promising
to appeal this decision, perhaps both Cooper and Miller might want to
rethink the utility of hanging their whole case on this First Amendment
defense. If I were running their defense committee, I'd give the case
to Bruce W. Sanford.

...

What could Sanford do for Cooper and Miller that Abrams can't? For
one thing, he could tack away from the First Amendment argument. Even
though I'm a First Amendment extremist, I found Abrams' oral argument
before the D.C. Circuit to be wishful and flabby. I don't know of any
court, let alone the Supreme Court, that is likely to hold that
reporters possess a near automatic right to ignore grand jury subpoenas.

If
I'm right, a fresh law jockey might be the ticket. In their op-ed,
Sanford and Toensing called upon the special prosecutor Fitzgerald and
the two reporters to ask Judge Thomas Hogan, who oversees the grand
jury, "to conduct a hearing to require the CIA to identify all
affirmative measures it was taking to shield Plame's identity." They
conclude their piece, "Before we even think about sending reporters to
prison for doing their jobs, the court should determine that all the
elements of a crime are present."

Eventually a consortium of newspapers did hire Bruce Sanford to file an amicus brief making the "no crime" argument, without any apparent success. But since I had been arguing that the courts would let this proceed for other reasons, I would hardly say that Mr. Sanford's apparent failure demonstrates that the IIPA does in fact cover Ms. Plame.